Signs of the persistence of the Biden antitrust agenda heading into the Trump White House were evident early in the new administration.
Trump’s antitrust agents started the year with a statement that they would continue to oversee mergers using the 2023 Merger Guidelines. These Biden Era rules muddied the clarity of earlier guidelines followed by both Democratic and Republican Administrations. The Biden-era Merger Guidelines reduced predictability. Market shares would not be determinative. A menu of suspicious acts was announced, which could stop mergers even if the market shares were small.
Another aspect of the Merger Guidelines was that, if a merger led to lower costs, that would not necessarily save it if shareholders, rather than consumers, benefited.
Further, reflecting Biden’s self-proclaimed advocacy for unions, a merger that led to cost savings by lowering labor costs would now be condemned for exactly that reason. Consumers might be helped, but if labor was hurt, antitrust laws would be applied.
All this continued under Trump’s appointees.
Both federal antitrust enforcement agencies are under President Trump’s direction: the Justice Department since the January inaugural, and the FTC since March when President Trump fired two Democratic Commissioners. Earlier this month, the US Supreme Court heard arguments on whether the President acted legally in removing the FTC Commissioners. Ninety years ago, a previous Court ruled that FDR could not do what Trump is now trying. Trump is likely to win; but, for antitrust purposes, none of this moving and shaking will really matter very much because Trump’s antitrust appointees have been acting like Biden appointees.
Two of the high-tech, social media cases President Trump’s team pursued this year were originally brought in his first administration (against Google Search and Meta). The others (against Google Adtech and Amazon) were originally brought under President Biden but vigorously pursued by the Trump team.
Each was based on concepts of tech and social markets that haven’t changed since 2016, though each market has seen major disruptions over the intervening years. Antipathy to high tech appears to be the consistent qualifying feature, dulling the antitrust enforcers’ sensitivity to rapidly changing technology.
The courts that handed the FTC a loss in its attempt to undo Meta’s acquisition of WhatsApp, and Microsoft’s purchase of Activision, explicitly noted how out of date the FTC was. A similar sentiment pervaded the federal district court opinions that, while upholding the Trump Justice Department’s suits against Google Search and Google Adtech, denied the DOJ its requested remedies. The reason given in each case, by two different federal judges, was the rapidly moving technology in the relevant industries, which would likely cause the divestitures sought by the DOJ to be obsolete before the appeals in the cases were over.
The Biden FTC’s policy statement interpreting the phrase “unfair methods of competition” in the FTC statute was also retained. No statement by the FTC in its 111-year history had ever gone this far in reading that phrase so broadly. The 2022 document claimed that the FTC could reach far beyond existing antitrust laws. It abandoned the guidance of almost fifty-years standing that antitrust laws’ purpose was to protect competition rather than competitors. Consumer welfare was no longer the goal of antitrust: an amorphous concept of fairness would replace it.
This flexibility was retained because it appeared attractive for the Trump Administration to advance its own ends. The elasticity of the “fairness” test permitted the FTC to announce antitrust investigations into whether media outlets had agreed not to carry conservative messages, and to condition the approval of advertising giants Omnicom and IPG on their making a promise not to do so. This is as much a stretch from the traditional reach of antitrust as the Biden Administration’s championing of labor unions. Antitrust purists would have criticized the Biden Administration had it made the same announcements about the behavior of media outlets, just changing “conservative” to “liberal.”
The decisions to retain the Merger Guidelines and the “Unfair Methods of Competition” Policy Statement were not aberrations. They fit comfortably with the Trump Administration’s populist hostility to high tech and social networks and its suspicion that leaders in both industries had not supported his re-election in 2024.
The harm that comes from this approach, however, will be lasting. Instead of repealing the Biden Administration’s leftist tilt, Trump’s team utilized the same mechanisms for a rightist tilt. Neither is conducive to predictability, which is an essential element for a healthy relationship between government and commerce in a free market economy.
A truly conservative antitrust regime would have repealed them both, President Trump should take note.
